Bias May be Implicit in Current Law on Search and Seizure

Over the past several years, questions about racial bias in law enforcement have commanded a great deal of public attention. Across the country, citizens have called for reforms to address—and hold police accountable for—racially motivated misconduct. Many municipalities have instituted substantial reforms. But not all police activity is regulated by cities, states, or even Congress. Laws must conform to the dictates of the Fourth Amendment, and the Supreme Court calls the shots on its interpretation and application.

In a 2018 article, Georgetown University law professor Diana R. Donahoe asserted that racial bias is baked into the Supreme Court’s Fourth Amendment jurisprudence. Donahoe argued that the Court’s definition of “consent” to police searches is rooted in white privilege and gives police leeway to trample on the rights of minorities.

The Fourth Amendment protects people against unreasonable government searches and seizures. Typically, under the Fourth Amendment, if law enforcement wants to perform a search, it must obtain a warrant issued in advance by a neutral judge. But there are several exceptions to the warrant requirement, including the consent exception: Police do not need a warrant if an individual voluntarily consents to a search of his or her home or person. When multiple occupants share a home, consent becomes tricky. In a series of recent rulings, the Supreme Court established that if a resident grants police consent to enter and search, a co-occupant can bar police from entering if and when he is standing at the threshold of the home. The Court relied, as it often does in Fourth Amendment cases, on a “social expectation” doctrine: If a social visitor would enter a home under prevailing social norms, then so can the police. The Court reasoned that if a resident invited in a visitor, the visitor would leave if a co-occupant stood at the threshold objecting to the visit, but the visitor would feel free to return and enter once the objecting occupant left.

Donahoe characterized the idea equating police to social visitors as a manifestation of white privilege. She marshaled sociological evidence and first-person accounts by black intellectuals to describe how black people are less likely than white people to know their rights and less likely to assert them even if they do. Even if a black person knows they have a right to withhold consent, fear for their personal safety incentivizes them to accede to all officer requests in police encounters. Donahoe maintained that where a white person might see police officers as benign visitors or protectors, a black person would reasonably perceive the police as a threat to avoid and placate.

The Supreme Court’s rulings on consent, Donahoe argued, help police dodge the Fourth Amendment’s warrant/probable cause requirement and incentivizes them to disproportionately target black homes. An officer who wants to investigate a home free of the bureaucratic hassle of obtaining a warrant would want to focus on homes where the subject is more likely to consent. Third-party consent doctrine gives police even greater leeway: If the subject does not want police to enter but his co-occupant (the “third party”) grants permission, he only has the power to turn the police away if he is standing at the threshold. Worse, under certain circumstances, the police can remove the subject from the threshold on a pretext, then search the home once he has been removed.

Donahoe proposed several changes to current Fourth Amendment doctrine to rectify the problems she laid out. First, courts should return to an older understanding of the Fourth Amendment, under which only the target could waive his constitutional right to privacy in his home. Second, if the target does not waive his rights, the refusal should remain in effect until he “clearly and unequivocally revokes it.” Third, courts should place the burden of proof on the government that a waiver of Fourth Amendment rights is “knowing, intelligent, and voluntary,” a requirement that already exists for waiver of the constitutional rights to counsel and against self-incrimination. And finally, courts should consider race as a factor in determining whether consent was voluntary. Enacting these changes to the Fourth Amendment would, according to Donahoe, more directly address the issue of racially motivated misconduct.

Article source: Donahoe, Diana R. “Not-So-Great Expectations: Implicit Racial Bias in the Supreme Court’s Consent to Search Doctrine.” American Criminal Law Review 55 (Summer 2018): 619-663.

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